Ward v. Ceco Corp.

• Decision Date: 13 May 1985
• Docket Number: No. 12460-9-I,12460-9-I
• Parties: , 1984-1985 O.S.H.D. (CCH) P 27,322 Robert V. WARD and Teresa Ward, husband and wife, Respondents/Cross-appellants, v. CECO CORPORATION, a Washington corporation, Appellant/Cross-respondents.
• Court: Washington Court of Appeals

Page 619

40 Wn.App. 619

699 P.2d 814, 1984-1985 O.S.H.D. (CCH) P 27,322

Robert V. WARD and Teresa Ward, husband and wife, Respondents/Cross-appellants, v. CECO CORPORATION, a Washington corporation,

Appellant/Cross-respondents.

No. 12460-9-I.

Court of Appeals of Washington,

Division 1.

May 13, 1985.

Review Denied July 26, 1985.

Reed, McClure, Moceri & Thonn, William R. Hickman, Seattle, for appellant/cross-respondents.

Merrick, Hofstedt & Lindsey, H.J. Merrick, Seattle, for respondents/cross-appellants.

SWANSON, Judge.

The primary issue raised in this appeal is whether the Washington Industrial Safety and Health Act of 1973 (WISHA) and regulations promulgated thereunder impose a non-delegable duty upon a subcontractor on a multi-employer jobsite to erect handrails for the protection of employees other than those employed by the subcontractor.

The facts are undisputed. While working on the construction site of the Daon Building in Seattle on July 7, 1980, Robert V. Ward slipped and fell from a wooden platform erected by Ceco Corporation, a subcontractor. Ward was the labor foreman for the general contractor, Sellen Construction Company.

Sellen had engaged Ceco to erect wooden forms for concrete ramps, slabs, and beams in the parking garage. Once a portion of the forms had been erected, Ceco employees sprayed an oil substance onto the forms to facilitate their later release from the concrete. Other subcontractors then installed electrical conduits and reinforcing bars, and Sellen thereafter poured the concrete. Once the concrete cured, Ceco removed the forms and re-erected them to continue the spiraling growth of the garage.

Before Ceco employees finished erecting the forms for the "A" level, they were informed that construction would be stopped until the construction plans were modified. They erected no guardrail along the leading edge of the construction before leaving the site on July 3, 1980.

On the following Monday, July 7, 1980, Ward walked over to the leading edge of the forms on the "A" level in search of an air hose. As he turned around, he slipped on an accumulation of oil which Ceco employees had sprayed on the forms, fell 10 to 14 feet to the level below, and suffered injuries. Ceco employees were not on the site at the time Ward fell.

Ward sued Ceco alleging that regulations promulgated by the Director of Labor and Industries required Ceco to erect guardrails and that Ceco's failure to erect these guardrails proximately caused his injuries.

Ceco sought to amend its answer and assert a third-party claim against Sellen on the basis that the Sellen-Ceco contract delegated to Sellen all responsibility for the erection and maintenance of guardrails. The court denied this motion. This denial is not challenged on appeal. Ceco subsequently sued Sellen for indemnity. The indemnity action is not before us and its status has no bearing on our decision here.

Prior to trial, Ward moved in limine to prevent Ceco from introducing evidence of the written contract between Ceco and Sellen. Ceco again alleged that the contract delegated to Sellen all responsibility for the erection of handrails. The court granted Ward's motion to exclude evidence of the contract based on its conclusion that the WISHA regulations imposed on Ceco a non-delegable duty to erect handrails. Ceco challenges this ruling on appeal.

During direct examination, Ward testified that, based on the custom and practice in the industry, Ceco had the responsibility to erect the handrails. During the rebuttal phase of the trial, Lawrence Garcin, the assistant superintendent of Sellen during construction of the Daon Building, testified that the duty to erect the handrails fell upon Ceco because Ceco created the hazardous condition. When asked on cross examination by counsel for Ceco how he knew Ceco had this duty, Garcin answered, "Because I read the contracts." The court then upheld an objection by Ward's counsel as to this line of inquiry. The district manager for Ceco testified on cross examination by Ceco's counsel that Sellen had the responsibility to erect the handrails and that the scope of Ceco's work specifically excluded the erection of protective devices. Ceco asserted that these portions of the testimony "opened the door" to the introduction of the contract. The trial court disagreed. That decision is also challenged on appeal.

Finally, Ceco excepted to several of the court's instructions regarding Ceco's duties under the WISHA regulations to employees other than its own and excepted to the court's refusal to instruct the jury that it should consider the Sellen-Ceco contract.

The jury returned a $400,000 verdict in favor of Ward. However, because the jury found Ward 50 percent contributorially negligent, the court reduced the judgment to $200,000. This appeal followed.

WISHA provides in pertinent part that each employer:

(1) Shall furnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees: ... and

(2) Shall comply with the rules, regulations, and orders promulgated under this chapter.

(Italics ours.) RCW 49.17.060.

Ceco argues that adoption of this statute in 1973 effected a change in the scope of the duty imposed on employers. Whereas the former law ¹ imposed a duty to provide a safe place to work for all workmen, Bayne v. Todd Shipyards Corp., 88 Wash.2d 917, 568 P.2d 771 (1977), ² Ceco argues this emphasized portion of RCW 49.17.060 enacted in 1973 indicates the Legislature's intent to impose a duty on an employer to provide a safe place to work only for his employees.

On the other hand, Ward contends that such a reading of the statute is too restrictive and that, in any event, section 2 of RCW 49.17.060 commands every employer to comply with regulations adopted pursuant to WISHA which regulations impose a non-delegable duty to provide a safe place to work for all workmen.

WAC 296-155-505(4)(a) provides in part:

Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in (6)(a) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder.

This applies to "temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways." WAC 296-155-505(1). The duty to erect this guardrail is imposed on employers by WAC 296-155-040 which provides in part:

(1) Each employer shall furnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees.

(2) Every employer shall require safety devices, furnish safeguards, and shall adopt and use practices, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe. Every employer shall do every thing reasonably necessary to protect the life and safety of employees.

(Italics ours.) While section one indicates that the duty to provide a safe place of employment arises only with respect to the employees of each employer, section two imposes a duty to install safety devices for the "safety of employees" generally.

Ceco was an "employer" ³ as that term was used in WAC 296-155-040. Therefore, it had the duty to erect guardrails along the leading edge of the wooden forms, which were more than 6 feet above the lower level, provided the leading edge of the wooden forms was (1) an "open-sided floor or platform 6 feet or more above [an] adjacent floor", WAC 296-155-505(4)(a), (2) a temporary or emergency condition creating a danger to employees, WAC 296-155-505(1), which (3) was under control of or created by Ceco. Accord Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 582 P.2d 500 (1978); Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir.1974). Resolution of these three elements rests upon factual findings, and the record contains substantial evidence which supports a finding that all three elements were present. Thus, Ceco had a duty to erect guardrails.

Because RCW 49.17.060(1) and WAC 296.155.040(1) impose an undisputed duty upon Ceco to erect guardrails for the protection of its own employees, we interpret the equally plain language of section 2 of the same statute and section 2 of the same regulation as imposing upon Ceco the duty to protect other workers whom Ceco had reason to know would be working within the "zone of danger" created by Ceco (i.e., oil coated flooring near the edge of an elevated platform). Such a conclusion furthers the purposes underlying WISHA, ⁴ meets the requirement that the WISHA standards meet or exceed the requirements of the Occupational Safety and Health Act of 1970 (OSHA), which requires employers having control over the work place to provide a safe place of work for all employees, Kelley v Howard S. Wright Constr. Co., supra; see Beatty Equip. Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir.1978) (under OSHA, subcontractor creating hazard at a multi-employer jobsite owes duty to employees of other subcontractors who are exposed to the hazard), and places the burden on the party best able to avoid the potential danger.

In Lamborn v. Phillips Pac. Chem. Co., 89 Wash.2d 701, 575 P.2d 215 (1978), an employee of an independent contractor sued Phillips, the owner of the premises on which he was working, alleging Phillips failed to provide him a safe place to work and reasonably safe equipment. The court stated, at 707:

The owner of a premises owes to the servant of an independent contractor, employed to perform work on that owner's premises, the duty to avoid endangering him by the owner's own negligence. In short, he owes the same duty of care to the on-premise servants of another master as he owes to his own employees.

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